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Victoria Mccarthy, Katherine Schmitt v. R.J. Reynolds Tobacco Co.

October 14, 2011

VICTORIA MCCARTHY, KATHERINE SCHMITT, PLAINTIFFS,
v.
R.J. REYNOLDS TOBACCO CO., AND DOES 1-10, DEFENDANTS.



MEMORANDUM AND ORDER RE: MOTION FOR ATTORNEYS' FEES

Plaintiffs Victoria McCarthy and Katherine Schmitt obtained a jury verdict and judgment in their favor on claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, 2000e-3, for sexual harassment and retaliation against their former employer, defendant R.J. Reynolds Tobacco Co. After the court denied defendant's Motion for Judgment as a Matter of Law and for New Trial, it granted plaintiffs' motion for attorneys' fees pursuant to 42 U.S.C. § 2000e-5(k) and awarded plaintiffs $147,738.00. Defendant has appealed the court's orders denying its Motion for Judgment as a Matter of Law and for New Trial and granting plaintiffs' request for pre-judgment attorneys' fees. (Docket Nos. 146, 152.) Plaintiffs now move for an award of attorneys' fees based on the fees they incurred after judgment was entered.

I. Effect of Appeals

Generally, "[t]he filing of a notice of appeal is an

event of jurisdictional significance--it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (per curiam). Defendant contends that, because it has filed a Notice of Appeal of the court's September 13, 2011 Order granting plaintiffs' request for pre-judgment attorneys' fees, awarding post-judgment fees would require the court to amend the September 13, 2011 Order, which it cannot do when the appeal of that Order is pending. See Pro Sales, Inc. v. Texaco, U.S.A., Div. of Texaco, Inc., 792 F.2d 1394, 1396 n.1 ("Because the filing of a notice of appeal generally divests the district court of jurisdiction over the matters appealed, the district court here had no power to amend its opinion at the time it attempted to do so.") (internal citation omitted).

Plaintiffs did not, however, move for and the court did not award post-judgment fees in the September 13, 2011 Order. Although the court agrees that the more prudent course of action may have been for plaintiffs to wait and make a single motion for all attorneys' fees after the post-judgment motions were resolved,*fn1 deciding plaintiffs' pending motion for attorneys' fees would not require the court to amend the September 13, 2011 Order.

Moreover, the "rule of exclusive appellate jurisdiction" resulting from an appeal "is a creature of judicial prudence[] and is not absolute." Masalosalo by Masalosalo v. Stonewall Ins. Co., 718 F.2d 955, 956 (9th Cir. 1983). In Masalosalo, the Ninth Circuit held that the filing of a notice of appeal from an entry of summary judgment does not divest the district court of jurisdiction to award attorneys' fees in the case. Id. In so holding, the Ninth Circuit emphasized that allowing the district court to award attorneys' fees while the appeal on the merits was pending would "prevent hasty consideration of postjudgment motions" and "prevent postponement of fee consideration until after the circuit court mandate, when the relevant circumstances will no longer be fresh in the mind of the district judge." Id. at 957. It also recognized that allowing the district court to award attorneys' fees "may prevent delay and duplication at the appellate level" because, "[i]f a district court decides a fee issue early in the course of a pending appeal on the merits, and the fee order is appealed, the appeals may be consolidated." Id.

Although this case is not on all fours with Masalosalo, the reasoning and policies behind the Ninth Circuit's holding in that case apply equally here. Even assuming that the Ninth Circuit's ruling on this court's award of pre-judgment fees will affect the award of post-judgment fees at issue in this motion, the effect cannot be more significant than the potential effect in Masalosalo because an appellate court's reversal of a grant of summary judgment could take away entitlement to fees in its entirety. The relevant considerations to resolve plaintiffs' request for post-judgment fees are also fresh in this court's mind and undoubtedly will be muddled, if not forgotten, if the court waits for the Ninth Circuit to decide the pending appeals. Given the close proximity of time between this Order and defendant's prior appeals, deciding plaintiffs' request for post-judgment fees at this time would also conserve appellate resources because, assuming defendant files a notice of appeal from this Order, the appeal can be consolidated with the pending appeals.

Accordingly, defendant's notice of appeal from the court's September 13, 2011 did not divest this court of jurisdiction to consider plaintiffs' motion for post-judgment fees.

II. Attorneys' Fees

Title VII provides for reasonable attorneys' fees to a prevailing party. See 42 U.S.C. § 2000e-5(k). To determine reasonable attorneys' fees, the court must first calculate the lodestar by taking the number of hours reasonably expended in the litigation and multiplying it by a reasonable hourly rate. Fisher v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). "Though the lodestar figure is presumptively reasonable, the court may adjust it upward or downward by an appropriate positive or negative multiplier reflecting a host of 'reasonableness' factors, including the quality of representation, the benefit obtained for the [plaintiff], the complexity and novelty of the issues presented, and the risk of nonpayment." In re Bluetooth Headset Prods. Liab. Litig., --- F.3d ----, ----, 2011 WL 3632604, at *4 (9th Cir. 2011) (internal quotations and citations omitted).

A. Reasonable Hourly Rate

A reasonable rate is typically based upon the prevailing market rate in the community for "similar work performed by attorneys of comparable skill, experience, and reputation." Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986); see also Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984) ("[T]he burden is on the fee applicant to produce satisfactory evidence . . . that the requested rates are in line with those prevailing in the community.").

In the September 13, 2011 Order, the court determined that the reasonable hourly rate for Aldon Bolanos's services was $285 per hour, and the court explained its reasons for this determination in detail. (See Sept. 13, 2011 Order at 3-6.) Based on the court's prior determination, plaintiffs concede that the reasonable hourly rate for Bolanos's services is $285. Although defendant did not object to Bolanos's original request for a rate of $375 per hour for pre-judgment services, defendant now contends that even the reduced rate of $285 that the court imposed in the September 13, 2011 Order would be excessive. Albeit without the benefit of argument from defendant, the court carefully considered the rates awarded in other cases in this district, the quality ...


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